A Kelowna, B.C. driver who argued "I was only holding it," after he was caught driving with a smartphone has lost an appeal.

A judicial justice has upheld a penalty against Samuel Austin Bainbridge, who in September 2016, was fined $368 for using an electronic device while driving.

'Force of habit'
Bainbridge disputed the fine, arguing in court in January 2018, that he was not operating any of the phone's functions while holding it.

He was pulled over while driving his Ford Explorer on Enterprise Way in Kelowna after police observed him holding his phone in his right hand. Officers told the court they could see the manufacturer's logo on the back of the phone.

Bainbridge told one of the constables that "I wasn't communicating with anyone," according to the March 2018 judgement. "Force of habit to have [the] phone in my hands."

Lips weren't moving
The two officers who pulled over Bainbridge testified they did not see the phone at his ear or see his lips moving or see light coming from the screen of the phone. And they didn't see him manipulating the phone.

Bainbridge admitted he was holding the phone and wallet in the same hand with which he held the steering wheel.

During the appeal, he cited previous cases, arguing that the Crown must prove he was using the phone.

The section of the Motor Vehicle Act under which Bainbridge was fined states that a person must not use an electronic device while driving or operating a motor vehicle on the highway.

Ordered to pay fine
The section defines use as "holding the device in a position in which it may be used."

Justice Brian Burgess ruled that holding the phone is akin to using it.

"The court does not have to decide where the phone was actually located, either at the steering wheel or between the steering wheel and Mr. Bainbridge's body," the judge wrote.

 "Mr. Bainbridge, by holding the phone in his right hand while driving was holding the phone in a position in which it may be used."

Burgess ruled Bainbridge was guilty of the offence and ordered him to pay the fine.

The province banned the use of personal electronic devices while driving — including talking on a hand-held cellphone and text messaging — in January, 2010.

Since then, it has increased the penalties. ICBC says distracted driving is the second leading cause of motor vehicles fatalities in B.C. behind speeding.